RSS Feed MenuEven though Sonia Sotomayor’s empathy and background were at the center of her tightly messaged nomination, by Friday the White House was backing away from her statement that a “wise Latina” might be better equipped to dispense justice than a white male.
But not all of Judge Sotomayor’s supporters appear as quick to run from a debate over the role personal feelings and prejudices should play in judicial decisionmaking.
Senator Patrick Leahy, Chairman of the Judiciary Committee, seems ready to defend Sotomayor’s statement, pointing to supposedly similar Republican sentiments. On “Meet the Press,” Leahy referenced a statement of Justice Alito’s from his confirmation hearings.
When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or, because of gender. And, I do take that into account.
Leahy mused that Sotomayor’s reflections about the role of personal experience in judging might not be “any different than Judge Alito.”
So expect the following from Leahy and his colleagues.
Republicans support empathy in judging too. It is impossible for judges to put their experiences completely aside when deciding cases, something acknowledged by past Republican nominees. Even the conservative columnist David Brooks recently argued that judges cannot divest themselves of their unique reactions to a particular set of facts, and conservatives, no less than liberals, understand that these personal preferences and individual worldviews are part of a judge’s toolkit for deciding cases.
With this softball set-up, the Democrats will allow Sotomayor to reframe, moderate, and reaffirm her position, at the same time that she disavows her actual comment as imprudent.
Republicans should not accept this explanation at face value, and they should prepare a theoretically and politically serious rejoinder.
Specifically, Republicans need to unpack the types of cases in which Sotomayor and her liberal supporters anticipate she will use personal experience to inform her decisionmaking.
Democrats will argue that it is only in the few “hard cases” that a nominee’s personal experiences will matter. It is in the interpretation of the Constitution’s commitments to liberty, equal protection, and privacy that liberal constitutionalists expect physiological and ethnic difference to play a deciding role. It is in the particular application of broad constitutional principles that Democrats hope Sotomayor’s personal experiences and feelings will contribute to progressive constitutional developments.
Yet, Republicans must argue that it is in precisely these tough cases that judges should set their personal preferences aside.
Where the Constitution’s text is broad, where its commitments are general, where history is little guide, and where the American people disagree, a prudent judge – aware of the moral and institutional limits on her authority in a republican system – should think twice before making legal conclusions based on her own particular worldview.
In these tough cases, an unelected judge, rather than impose on the Constitution’s text a disputed interpretation born of her individual experience, more properly defers to the decisions of popularly elected majorities.
And though the media will frown on it, Republican Senators should take this opportunity to remind the American people of the shallowness of their Democratic colleagues’ commitment to diversity. The history of poverty and segregation experienced by Janice Rogers Brown and Clarence Thomas was of no consequence for Democrats who sought to scuttle their nominations. And when it came to Miguel Estrada, the wise Latino, Democrats tied the Senate in knots to keep him off the bench despite his experience as a Honduran immigrant.
In the end, the Democrats promote Sotomayor’s commitment to judgment by anecdote and personal experience not because of her diverse views but because she promises ideological conformity with the standard theories of liberal constitutionalists. She is the White House’s nominee not primarily because of the color of her skin or her gender, but because she is likely to believe much of what Larry Tribe believes about the American Constitution.
And on the list of liberal legal bromides deserving conservative scrutiny is the contention that in hard cases judges’ personal views should play a role. In fact, it is in those cases that judges should recognize their place in a democracy, put personal views aside, and let the people rule.
// Jun 2, 2009 at 2:08 pm
1. Sotomayor never said she relies on her personal feelings in deciding cases. Instead, she said her background and experiences influence how she perceives the facts of a case. This, of course, is exactly what Alito implied.2. Democrats will NOT argue that only the “hard cases” are ripe for this kind of judging. The quotes by Leahy to which you refer make clear that he believes all judges do this in all cases. The difference is that in many cases most judges will come to the exact same conclusion even though they have different backgrounds and experiences.3. If you don’t think a justice’s background and experience matters on cases that pertain to liberty, how do you explain the Court’s eventual ability to look at cases like Dred Scott, Plessy v. Ferguson and Korematsu as so clearly wrong? If the law was as black & white as you seem to believe, then those cases should have been decided correctly when they were first handed down.4. Your knock on Democrats’ commitment to diversity re Thomas & Brown is misguided. Democrats (nor the BOP) are not committed to ideological diversity, nor should they be. Each party has a view of the direction the court should go, and neither party is going to approve a nominee who goes in the opposite direction merely b/c that nominee is a racial minority. To do so would be the height of race-based appointments.
ltwpolitics // Jun 2, 2009 at 2:20 pm
“In these tough cases, an unelected judge, rather than impose on the Constitutions text a disputed interpretation born of her individual experience, more properly defers to the decisions of popularly elected majorities.”So that means the Ricci case was correctly decided by Sotomayor? After all, she was just affirming precedent and the legitimacy of the disparate impact provisions of the Civil Rights Act of 1991.It’s the connies who want to overturn precedent and the Congress by reverssing Ricci. Damn those judicial activists of the right!
fernando // Jun 3, 2009 at 6:53 am
Judge Sotomayor meets the Presidents criteria of having a sharp and independent mind, a record of excellence and integrity, being dedicated to the rule of law, and honoring constitutional values. The President was right that his nominee should also have demonstrated the ability to “walk a mile” in another’s shoes and see things from that perspective. That doesn’t mean anything else, and it’s silly to suggest the ability to empathize detracts from exercising prudent judgment. Indeed, to assume that Supreme Court Justices have never once been affected by the human experience presented in their cases would be naieve. Justice Thomas spoke of this quality in his confirmation hearings, and how it would allow him to “bring something different to the Court.” Justice Alito did the same thing. Neither had as much experience actually deciding cases as Judge Sotomayor does when they were nominated, but their life experiences were seen by all sides as adding to their wisdom, not detracting from it.